Citation Nr: 9930662
Decision Date: 10/27/99 Archive Date: 11/04/99
DOCKET NO. 95-34 579 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to a temporary total evaluation under 38 C.F.R.
§ 4.30 beyond July 1, 1993.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M.G. Mazzucchelli, Counsel
INTRODUCTION
The veteran served on active duty from August 1963 to July
1966. This appeal arose from a May 1994 rating decision of
the Department of Veterans Affairs (VA), New Orleans,
Louisiana, regional office (RO).
In June 1997, the Board of Veterans' Appeals (Board) remanded
the case for additional development. Subsequently, an August
1998 rating action continued the prior denial.
REMAND
As noted in the Board's previous remand, the veteran
underwent a right ankle debridement, right fourth flexor
tenotomy, and fat graft to right superficial perineal nerve
on May 27, 1993. A temporary 100 percent evaluation was
assigned from May 26, 1993 to July 1, 1993. The veteran
contends that he is entitled to a temporary total disability
rating for convalescence under 38 C.F.R. § 4.30 beyond July
1, 1993. The record shows that the veteran was seen on June
13, 1993, with a grossly infected surgical incision on the
right ankle, and that the stitches had to be removed and
antibiotic therapy started immediately. The veteran has
contended that he continued to require crutches at least
until August 1993.
The prior remand instructed the RO to contact the veteran's
treating physicians at the VAMC in Houston, Texas, and VA
outpatient clinics in Beaumont, Texas, and Jennings,
Louisiana, to obtain information as to the length of the
veteran's convalescent period. This was not accomplished.
Instead, the RO obtained an opinion from Robert Po, M.D., a
private orthopedic physician in Louisiana. Dr. Po reviewed
the claims folder and stated that it was his estimate that
the veteran's "return to full activity employment would have
been after the examination at the VA of July of 1995."
However, the Board notes that a VA outpatient treatment note
of record dated in July 1994 indicated that the veteran was
working at that time.
Unfortunately, it is still not clear from the record exactly
how long the veteran's convalescent period lasted. The RO
should contact the veteran's treating physicians at the
Houston VAMC, and VA outpatient clinics in Beaumont, Texas,
and Jennings, Louisiana, to obtain information as to how long
regular weight-bearing was prohibited and when the surgical
wounds were completely healed after his right foot surgery on
May 27, 1993.
The Board is responsible for entering the final decision on
behalf of the Secretary in claims for entitlement to
veterans' benefits, see 38 U.S.C.A. § 7104(a), and as such,
remand instructions to the RO in an appealed case are neither
optional nor discretionary. See e.g. Stegall v. West, 11
Vet. App. 268 (1998) (The United States Court of Appeals for
Veterans Claims (known as the United States Court of Veterans
Appeals prior to March 1, 1999) (hereinafter, "the Court")
vacated and remanded a Board's decision because it failed to
ensure that the regional office achieved full compliance with
specific instructions contained in a Board remand).
In view of the foregoing, the case is REMANDED to the RO for
the following:
The RO should contact the physicians who
treated the veteran during the period
following his May 1993 surgery at the
Houston VAMC, and VA outpatient clinics
in Beaumont, Texas, and Jennings,
Louisiana. The medical care providers
should be asked to provide information as
to how long regular weight-bearing was
prohibited and when the surgical wounds
were completely healed after his right
foot surgery on May 27, 1993. If such a
date is not available, they should be
asked to review the veteran's medical
records and this REMAND and provide
opinions as to when the veteran could
have resumed regular weight bearing and
when the wound was completely healed
following the May 1993 surgery. Complete
rationale should be provided for any
opinions expressed.
Following the above, the RO should review the veteran's claim
with regard to the additional evidence obtained. If the
outcome is not favorable to the veteran, he and his
representative should be provided with an appropriate
supplemental statement of the case and given a reasonable
opportunity to respond. Thereafter, the case should be
returned to the Board for further appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).